SC to petitioners challenging waqf law: Need 'strong and glaring' case for interim relief

NEW DELHI: The Supreme Court on Tuesday told the petitioners to come up with a "strong and glaring" case for interim relief while challenging the recently passed waqf laws.

"There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there," CJI said when senior advocate Kapil Sibal, leading the charge against the legislation, began his submissions.

During the hearing, the bench of CJI BR Gavai and Justice Augustine George Masih was asked by the Solicitor General Tushar Mehta to confine the proceedings identified by the earlier bench.

• One of the issues is the power to denotify properties declared as waqf by courts, waqf-by-user or waqf by deed.
  
• The second issue relates to the composition of state waqf boards and the Central Waqf Council, where they contend only Muslims should operate except ex-officio members,
• Last one is over the provision stipulating a waqf property won't be treated as a waqf when the collector conducts an inquiry to ascertain if the property is government land.

Meanwhile, senior counsel Kapil Sibal and Abhisehk Manu Singhvi led the charge against the legislation.

Here is what Sibal and Singhvi told the apex court:

• Sibal described the law as a "complete departure from historical legal and constitutional principles" and a means to "capture waqf through a non-judicial process"
  
• "This is a case about the systematic capture of waqf properties. The government cannot dictate what issues can be raised," Sibal said.
  
• Sibal said the amended law enables a systematic expropriation of waqf properties through executive means, bypassing due judicial process and, moreover, waqf properties can become non-waqf ones, that too by an executive order, denying the right to access courts by the aggrieved parties.
• "Waqf is the dedication of properties to 'Allah' by the waqif and the concept that once a waqf is always a waqf is jeopardised by the 2025 law," he said. Earlier laws on the subject, he added, safeguarded the properties and the present one intended to take them away.
• He also flagged the dilution of Muslim representation on the Central Waqf Council, asserting the amended law now permits a majority of non-Muslim members -- a stark departure from previous norms. "Earlier, the board members were elected and they were fully Muslims. Now they are all nominated. There will be 11 members, and 7 can be non-Muslims. This is violative of Articles 25 and 26. Management has to be done by the community," Sibal said.
• Comparing it with religious endowment boards for Hindus and Sikhs, Sibal said even the ex-officio and board members were invariably from the same faith in those contexts, and the waqf boards should be no different. "This is not secularism. Waqf creation is a religious act," he said.
• Singhvi, on the other hand, questioned the provision which says a person practising Islam for last five years can only create a waqf. Calling it "arbitrary and endless", Singhvi said no other religion was subject to such a burden.
• He raised concerns about Section 3(C), saying once a property was declared non-waqf, access to legal remedy was practically shut off, locking beneficiaries in a "vicious cycle".
• Answering the Centre's submission that a law, passed by Parliament cannot be stayed ordinarily, Singhvi said farm laws were stayed by the apex court.
• On the Centre's argument of a "1600% increase" in waqf properties after the 2013 amendment, Singhvi said the rise was due to digitisation and listing processes, not new acquisitions.
• Senior advocate Rajeev Dhavan , representing another petitioner, said the statute was an "attack on secularism and cultural autonomy".

Centre defends law in SC, says waqf intrinsically secular

Meanwhile, the Centre defended the newly enacted waqf laws, arguing that waqf, by its nature, is a secular concept and should not be subject to a stay due to the presumption of constitutionality that supports all statutes passed by Parliament.

• In a written submission presented by Solicitor General Tushar Mehta to the bench, the Centre addressed the concerns raised earlier by the court and clarified that the legislation aims only to regulate the secular management of waqf properties, while continuing to protect religious freedoms.
  
• The Centre maintained that there is no urgent national crisis that would necessitate a stay on the law.
• "It is a settled legal position that constitutional courts typically do not halt statutory provisions, whether directly or indirectly. Such matters are to be resolved through final judgments. Laws enacted by Parliament enjoy a presumption of constitutionality," the submission stated.
  
• Challenging the petitioners' request for a stay, the government said that without concrete allegations or documented violations of fundamental rights, imposing a stay at such an early stage would be unwarranted and potentially disruptive.
• Contrary to the petitioners’ claims, the Centre insisted there was no compelling urgency to suspend the legislation, especially when any disputes that arise during its application can be addressed through proper judicial channels.
• The government also opposed recognition of unregistered waqf by user, noting that such waqfs emerged during a time when formal records were uncommon. It argued that interfering with the law's provision limiting protection to registered waqfs would undermine the legislative intent and lead to inconsistencies.
• The Centre warned that allowing unregistered waqfs through interim judicial orders would reward those who have defied legal requirements for over a century, given that non-registration has always been a punishable offence. It added that such a stay would effectively legitimize these waqfs, which are prohibited under current law.
• It further cited a 1976 Waqf Enquiry Committee report, which highlighted deliberate efforts by some waqfs to avoid registration, thereby obstructing proper administration.
  
• Additionally, the Centre asserted that recognition of waqf by user is not a fundamental right, but rather a statutory provision. Since the right is conferred by legislation, it can also be withdrawn by legislation, especially when societal needs evolve
  
• On the issue of waqf institution composition, the government clarified that the Central Waqf Council may now include up to four non-Muslim members out of a total of 22. Similarly, state waqf boards may have up to three non-Muslim members out of eleven. It emphasized that Muslims still retain majority control, and the inclusion of non-Muslims is aimed at promoting transparency and inclusivity, given that waqf matters can affect individuals of all faiths.